MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR1999033056

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That she be determined to be the beneficiary of the Survivor Benefit Plan (SBP) of her deceased spouse, a former service member (FSM).

APPLICANT STATES:  That at the time of their divorce she did not arrange to receive the SBP because the FSM told her she would qualify since they had been married for 35 years.  After they remarried and he died, she was told that she was ineligible since she was not married to him at the time he became eligible for retired pay and they were not remarried for one year.

EVIDENCE OF RECORD:  The FSM's military records show:

He was born on 2 March 1931.  In 1948 he entered the U. S. Navy.  He enlisted in the Army National Guard in 1952.  He and the applicant married on                  21 September 1953.  He was appointed a warrant officer in the Army National Guard in 1975.

The FSM and the applicant divorced on 5 December 1988.

On an unknown date the FSM remarried.  He applied for retired pay in 1991 and at that time enrolled in the SBP for spouse and children coverage (he had had a child by his second spouse born in 1985).

On 22 December 1998, the FSM divorced his second spouse.  

On 19 January 1999, the FSM requested that his second spouse be removed as his SBP beneficiary and that his first spouse, the applicant, be enrolled as a person with insurable interest.

On 11 March 1999, the FSM and the applicant remarried.  On 12 March 1999, he requested she be added to his SBP.  On 9 August 1999, the FSM died.

On 16 March 2000, the Defense Finance and Accounting Service verified that no SBP beneficiary had yet been established.  They had sent a package to the child for completion (but they sent it to the applicant, not the child’s mother) but it had not yet been returned.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members, including Reservists age 60 and older, could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  The term “dependent child” includes a person who is unmarried and is under 18 years of age.
Public Law 94-496, enacted 14 October 1976, reduced the waiting period for a new spouse’s eligibility to be reduced from 2 years to 1 year following post-retirement marriage.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board concludes that an injustice has occurred in this case but will not take corrective action because that action could cause another injustice.

2.  When the applicant enrolled in the SBP, he elected spouse and child coverage.  The coverage for his second spouse was suspended in December 1998 upon that divorce.  However, his child coverage was never suspended and, since the applicant was not remarried to the FSM for 1 year at the date of his death, his son was his legal beneficiary at the date of his death.  (The applicant was not eligible to be added to the SBP as a person with insurable interest because the FSM had a dependent child.)  Although it appears the FSM’s dependent son has not yet applied for the SBP annuity, he is eligible to do so.  Unless the FSM’s dependent son is determined to be an ineligible beneficiary, to grant the applicant’s request at this date would constitute an unconstitutional taking from him.

3.  Absent consent of the FSM’s son to forego in perpetuity the SBP benefit, the Board will not consider granting the applicant the relief granted. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__slp___  __lem___  __aao___  DENY APPLICATION

    Carl W. S. Chun
    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999033056	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.